Jared Olar: The Constitution hangs in the balance

Momentous things are afoot in America — things that will determine the course of this nation’s history and the very fate of the American system of government.

Jared Olar

Momentous things are afoot in America — things that will determine the course of this nation’s history and the very fate of the American system of government.

I’m not talking about the presidential campaign and this fall’s congressional elections. I’m talking about things that are more fundamental than a general election, that will themselves profoundly affect the election’s outcome.

I refer to the implementation of, and the legal challenges to, the erroneously named Patient Protection and Affordable Care Act, colloquially known among conservatives as "Obamacare."

Under the heading of “implementation,” we have the ongoing conflict over the Department of Health and Human Services mandate that all health insurance must cover the costs of abortifacients, contraception and sterilization with no co-pay.

And under the heading of legal challenges, the U.S. Supreme Court began Monday a three-day hearing on the constitutionality of Obamacare. The court’s ruling will probably come this summer.

We can’t predict whether the Supreme Court will uphold the law in toto, uphold only parts of the law, or strike down the entire thing. Whatever the court decides, it’s bound to influence the presidential race and will probably play a significant role in determining who will win the election in November.

Needless to say, at this stage, with the Republican race not yet finished (though probably close to it) and without knowing how the high court will rule on Obamacare, we can’t tell whether the ruling will aid the campaigns of President Barack Obama or of his Republican rival. If the court upholds PPACA, it could energize the Republicans, but if the court strikes the law down in whole or in part, it could motivate the Democrats. The opposite effects are also conceivable, because upholding Obamacare might discourage or disillusion some segments of the GOP voting base, and striking the law down could have a similar effect on Democrats. Frustratingly, I have no crystal ball.

While the influence of this much anticipated/feared ruling on the election will be significant, far more important will be the long-term effects.

That’s because what the Supreme Court is deciding is not just the fate of a federal law, or the way most people’s health care costs will be paid for. Hanging in the justices’ balance is the fate of the political structure that owes its existence to the U.S. Constitution.

The Constitution was designed to limit the reach of the federal government. That’s why states have the authority to do things that the federal government cannot.

Under the current administration, however, those limits have frequently been ignored or flouted. (Yes, past presidents have done that too, but they’re not the president any more, and they are not running for reelection this year.) We saw that recently with Obama’s illegal appointments without seeking the Senate’s approval even though the Senate was in session. We’ve seen it with the HHS abortion-contraception-sterilization mandates, which leave no room for the exercise of religious conscience.

And we have seen it with the so-called “individual mandate,” which requires nearly all Americans to carry health insurance as a condition of being allowed to be alive within the geographical boundaries of the U.S. and its territories.

As stated by David Rivkin and Lee Casey, who are attorneys who have represented the 26 states that have challenged Obamacare in federal court, “Americans cannot escape the individual mandate by any means because it regulates them as people, simply because they are alive and here. That requires police power authority.” But under the U.S. Constitution, only the states have the kind of “general police power” that could give Congress the authority to impose a mandate to buy health insurance.

This is an authority Congress has never claimed for itself before, and unless it is overturned by the court or repealed by a future Congress, the Constitution and all its limits on the federal government are mere words with no meaning.

Jared Olar may be reached at jolar@pekintimes.com. The views expressed in this column are not necessarily those of the newspaper.

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